Docket No. 128 | Mich. | Dec 10, 1907
( after stating the facts). The court sustained the demurrer, holding that “the declaration is in its essence for breach of promise to marry, or seduction, or both,” and that the contract to marry was void as against public policy. The learned circuit judge in his opinion said:
“It would seem that the plaintiff must have understood that the former marriage was not so void as to authorize the defendant to enter into a new contract to marry.”
Even if the declaration were based upon breach of promise to marry, there is high authority for holding that it does not lie in the defendant’s mouth to plead his inability as a defense, provided the plaintiff was in ignorance of such inability. Kelley v. Riley, 106 Mass. 339" court="Mass." date_filed="1871-01-15" href="https://app.midpage.ai/document/kelley-v-riley-6416364?utm_source=webapp" opinion_id="6416364">106 Mass. 339. The court, however, was in error in holding the declaration to be one for seduction and breach of promise. It counted “tort-wise for fraud and deceit.” Such action lies for fraudulently inducing a woman to enter into the marriage
While it is true that the declaration admits that defendant informed plaintiff that he had once been married, it also alleges that he assured her that that marriage was void, and offered no obstacle to her marriage with him; that he offered to take her to the woman to whom he stated he had been married in order that plaintiff might ascertain from her the truth of defendant’s statement. The suspicions of a trusting woman might easily be allayed by this bold offer. In a similar case the plaintiff was informed by the defendant that he was divorced, and offered to take her to his mother to ascertain the truth of his assertion. He was not, in fact, divorced, and the court said that the very boldness and audacity of the offer would naturally disarm her suspicion. Morrill v. Palmer, supra.
If plaintiff entered into this relation with the defendant knowing that he was a married man, we may assume that plaintiff’s attorney was sufficiently versed in the law to know that she could not maintain an action either for breach of promise of marriage, or for fraud and deceit. Fairly construed, the declaration asserts that the plaintiff received the attentions of the defendant under his assertion that his former marriage was void, and that there was no legal impediment to his marriage with plaintiff; that she relied upon these representations, entered into the marriage relation with him, lived with him for years as his wife, and had three children by him; that she desired a public ceremony in accordance with the statute, and that he promised to have such ceremony performed, but put her off with promises. Under the allegations of the declaration it would be difficult to conceive of a more grievous wrong. His former marriage was valid, and he knew it. He kept up his relations with plaintiff until he tired of her, and thén obtained a divorce from his first wife, and sought the gratification of his lust by marrying
Judgment reversed, and the case remanded for further proceedings in accordance with the rules and practice of. the court.